On Friday, April 20, 2001, a Peruvian Air Force jet, acting
on intelligence supplied by a U.S. intelligence plane, shot down a civilian
aircraft that was mistakenly suspected of being part of a drug trafficking
operation. An American missionary and her infant daughter were killed
in a hail of gunfire, and the Bush administration immediately suspended
all U.S. drug interdiction flights over Peru. The current policy
on the sharing of aerial tracking intelligence with Peru and Colombia was
formulated in 1994, but not without a significant amount of debate within
the Clinton administration, some of whom warned that, “mistakes are likely
to occur under any policy that contemplates the use of weapons against
civil aircraft in flight,” and that, “A shootdown leading to the death
of innocent persons would likely be a serious diplomatic embarrassment
for the United States.” (See Document 7)

The National Security Archive has obtained through
the Freedom of Information
Act declassified U.S. government documents pertaining to the policy
debate that arose after the governments of Peru and Colombia announced
their intention to use weapons against civilian aircraft suspected of carrying
illegal narcotics. The debate resulted at first in the suspension
of “real-time” aerial tracking assistance with the two governments, but
the suspension was soon lifted after vigorous opposition from the State
Department and especially from the embassies in Lima and Bogotá.
The declassified documents featured below provide a revealing glimpse of
the priorities that Clinton administration officials weighed during this
episode, and expose deep interdepartmental divisions about the appropriateness
of the U.S. response.

Concerns about the forcedown policy first arose in
July 1990 when the U.S. began sharing real-time aerial tracking information
with Colombia and Peru to assist with the interdiction of planes operated
by drug smugglers. After Colombia informed U.S. officials that they
were considering a policy to authorize the forcedown of suspected trafficker
aircraft, the State Department issued a demarche explaining to the
Colombian government that both U.S. and international law preclude the
use of weapons against civilian aircraft except in self-defense.
In response, Colombia adopted the procedures, but suspended their implementation.

Peru adopted a forcedown policy in 1993, and in December
1993 Colombian officials informed U.S. Ambassador Morris Busby of their
intention to implement the provisions of their policy adopted in 1990.
A U.S. interagency group began a review of the new policies in January
1994. U.S. officials were concerned that these forcedown policies
might violate provisions of U.S. and international laws, and that while
the U.S. was not obligated to ensure the legal compliance of sovereign
states, it might nevertheless be implicated in these actions through its
bilateral intelligence sharing arrangements with the Colombian and Peruvian
governments. Colombia’s decision was announced on March 2, 1994,
and on May 1 the Clinton administration, led by the Department of Defense,
announced a suspension on the sharing of real-time aerial tracking data
with the two governments.

The move provoked a firestorm of criticism from the
Peruvian and Colombian governments as well as officials from the State
Department’s bureaus of International Narcotics Matters (INM) and Inter-American
Affairs (ARA), who were apparently not notified of the decision ahead of
time and who felt that the unilateral suspension would setback progress
that had been made on counterdrug issues and jeopardize other U.S. interests
in the region. These officials were pitted against the State Department’s
Legal Adviser and Justice Department officials who were concerned about
the domestic and international legal implications of the shoot down policy.
Their arguments supported the merits of the decision to suspend the radar
tracking data and voiced concern that “mistakes are likely to occur under
any policy that contemplates the use of weapons against civil aircraft
in flight, even as a last resort.” (See Document
7)

The administration ultimately decided that the best
course of action was to alter the existing U.S. law to allow U.S. aerial
tracking data to be used in operations against suspicious aircraft “if
the President has determined that such actions are necessary because of
the threat posed by drugtrafficking [sic] to the national security of that
country and that the country has appropriate procedures in place to protect
innocent aircraft.” This policy did not seek a solution to the international
legal problems raised by the forcedown policy, but rather sought “to reduce
the [United States government’s] exposure to criticism that such assistance
violates international law.” (See Document 10)

The following documents were obtained under the Freedom
of Information Act in response to a request from Kate Doyle.

Note: The following documents are in PDF format.You will need to download and install the free Adobe
Acrobat Reader to view.

This U.S. embassy cable summarizes talks between a State Department
official – including a legal affairs adviser – and the deputy legal adviser
from the Colombian Ministry of Defense regarding the decision to authorize
Colombia’s new aerial interdiction policy. The Colombian tells the
U.S. officials that internationally recognized procedures will be used
to communicate with suspect aircraft before any shots are fired.
She further asserts that the policy is legally justified under international
law in that the term “civil aircraft” does not apply to drug trafficking
aircraft that have violated international law and have not filed a flight
plan with the proper authorities.

Document
2Department of State, Office of the Legal Adviser, Forcedown Policy:
Options for Colombia and Peru, February 9, 1994, SECRET, 8 pp.
Includes attachments: 1) Position Paper on the Use of Weapons against
Aircraft Suspected of Carrying Drugs, October 18, 1989; 2) Use
of Weapons against Civil Aircraft: International Law Issues, January
19, 1994.

This draft options paper examines the legal and policy issues
raised by the Colombian and Peruvian government decisions to authorize
the use of force against suspected drug trafficking aircraft.

The first attachment discusses the reasons for State
Department opposition to legislation sponsored by Senator Mitch McConnell
that would authorize the use of force against aircraft suspected of carrying
illegal drugs and which do not respond to requests to land. The document
notes that the U.S. has long supported efforts to strengthen protections
for civil aircraft, adding that the U.S. “strongly condemned the Soviet
shootdown of KAL flight 007, despite that government’s assertion that the
aircraft entry into Soviet airspace was a criminal offense under Soviet
law.” The paper also cites a 1984 amendment of the Chicago Convention
on civil aviation – adopted in the wake of the KAL incident – banning the
use of force against civil aircraft. The document further asserts
that the adoption of the McConnell legislation would expose the U.S. to
“intense international criticism,” and that the adoption of such a policy
might send the wrong signal to other, less careful nations “that could
affect the safety of innocent U.S. citizens.”

The second attachment considers that international
legal issues raised by the Colombian and Peruvian policies. The U.S.,
according to the document, is under no obligation to ensure that other
governments comply with international law. However, U.S. participation
“in the activities of another government could implicate the USG [U.S.
government] in those activities,” and thus violate international law.

The Colombian government announced its intention to implement
the forcedown policy on March 2, 1994, in this press statement. The
document asserts that the policy is legal under international law, and
that it is “aimed at defending and preserving national sovereignty and
preventing overflight by aircraft that do not have the proper flight plan
to overfly Colombian airspace.”

Three days after the Department of Defense announced the suspension
of aerial tracking assistance, the U.S. ambassador in Peru sent this message
to Pentagon officials requesting that they postpone a planned visit to
Peru pending the outcome of the issue. The postponement of the visit,
which had been intended to persuade Peru to preserve a counterdrug helicopter
unit owned by the State Department, illustrates the extent to which the
impasse disrupted U.S. counternarcotics programs in the Andes and reveals
the level of frustration felt by U.S. officials in the two countries.
“Our inability to define a reliable USG [U.S. government] policy,” the
ambassador asserts, “leaves us unable to authoritatively resolve the current
uncertainty about this aspect of DOD [Department of Defense] counternarcotics
cooperation.”

On April 28, 1994, the U.S. embassy requested that Peru provide
a guarantee that weapons would not be used against “civil aircraft in flight.”
In response, the Peruvian minister of defense delivered a letter, the text
of which is transmitted in this cable, to the embassy. Turning the
tables, the minister “suggests” the suspension of all U.S. intelligence
flights over Peruvian airspace as well as operations at the U.S.-operated
radar site at Yurimaguas, “while the North American government takes a
definitive decision” with respect to the sharing of real-time tracking
data. The minister also quotes from the Chicago Convention
on civil aviation, noting that “every state has full and exclusive sovereignty
in the airspace situated over its territory.”

State Department frustrations about the Department of Defense
decision to suspend the sharing of real-time intelligence are evident in
this talking points memorandum, prepared by the Bureau of International
Narcotics Matters for a briefing with the Secretary of State. According
to the document, the suspension “has undercut our counternarcotics efforts
and damaged our credibility in the hemisphere.” The U.S. embassies
“were caught completely off-guard” by the decision, and, “Several of our
fundamental foreign policy and narcotics control interests are now at risk.”
U.S. ambassadors in both countries are concerned that the decision will
poison other U.S. policy issues and send the wrong signal to narcotics
traffickers who are now likely to expand their operations.

This document presents three policy options for the Secretary’s
consideration supported by different bureaus within the department.
The Office of the Legal Adviser (L) and the Bureau of Economic and Business
Affairs (EB) support the Defense Department’s decision to suspend “real-time”
intelligence sharing, while the Bureau of International Narcotics Matters
(INM) and Inter-American Affairs (ARA) oppose the decision. ARA and
INM argue that Peru’s “more aggressive policy” is working and that “the
very threat [that they might be shot down] has had a positive effect in
compelling traffickers to land as directed.” L and EB counter that
the U.S. has been strong in its support for the international prohibition
on the use of force against civil aircraft and specifically that, “The
prohibition applies whether or not the aircraft in question is suspected
of engaging in criminal activity.” They warn against making exceptions
to this rule arguing that “mistakes are likely to occur under any policy
that contemplates the use of weapons against civil aircraft in flight,
even as a last resort.” The L and EB argument also assets that, “A
shootdown leading to the death of innocent persons would likely be a serious
diplomatic embarrassment for the United States, subject the USG to intense
criticism before the International Civil Aviation Orgnization, and undermine
our efforts in the Iran Air proceeding at the World Court.”

NOTE: The “Options Paper” referred to as Tab 1 is apparently Document
2 from February 9, 1994. The various options listed in the document
remain classified.

Document
8U.S. Ambassador to Colombia Morris Busby to Under Secretary of State
for Political Affairs Peter Tarnoff, Forcedown Guidance from DOJ,
May 31, 1994, SECRET, 4 pp.

In a forceful plea to the Under Secretary of State for Political
Affairs, Ambassador Morris Busby laments the Defense Department’s unilateral
decision to suspend Colombia’s access to radar intelligence data.
Calling the ban “totally unnecessary,” Busby argues for the U.S. to quickly
negotiate a short-term “accommodation” with Colombia so that the “absolutely
essential” access to real-time intelligence data can resume.

On June 4 the Deputies Committee of the National Security Council
met to consider U.S. policy options on the provision of aerial tracking
intelligence to Colombian and Peru. State Department representatives
consider it highly unlikely that the U.S. might be able to convince the
two countries to drop the forcedown policies. Another option, the
segregation of intelligence data to preclude its use in effecting a forcedown,
is considered by most to be infeasible. A third option, “Attempt
to eliminate domestic and international legal impediments to full scale
USG participation in the Colombian and Peruvian aerial interdiction programs,”
is to be included in an options paper to be considered by the president.

On June 21, President Clinton made a decision. He would
propose language in the National Defense Authorization Act of 1995 to amend
the law prohibiting the sharing of real-time intelligence with Colombia
and Peru to allow for the shoot down of suspected drug smuggling planes
if appropriate procedures are in place to protect innocent aircraft and
“the President has determined that such actions are necessary because of
the threat posed by drugtrafficking [sic] to the national security of that
country.” This document recommends a three-step policy for the short-term
renewal of aerial tracking assistance to Colombia and Peru to cover the
period before Congress has adopted the new language. Step one would
seek to convince Peru and Colombia to agree to certain restrictions on
the use of real-time intelligence until the U.S. legislation can be modified
to accommodate the shoot down policy. Step two would encourage the
two governments to comply with international law, perhaps by declaring
a “national emergency” as permitted under the relevant conventions.
The third stop contemplates a campaign to convince nations deemed “aviation
partners” to accept a “narrow exception” to international law in cases
where “drug trafficking threatens the political institutions of a state
and where the country imposes strict procedures to reduce the risk of attack
against non-drug trafficking aircraft.”

Significantly, the document notes that, “The President
explicitly did not condition the resumption of assistance on a solution
to the international law problems associated with the USG’s provision of
such assistance. Instead, the plan he approved suggested that the
USG would take steps to reduce the USG’s exposure to criticism that such
assistance violates international law.”

Document
11Presidential Determination No. 95-7, Resumption of U.S. Drug Interdiction
Assistance to the Government of Colombia, December 1, 1994, 1 p.

Document
12Presidential Determination No. 95-9, Resumption of U.S. Drug Interdiction
Assistance to the Government of Peru, December 8, 1994, 1p.

These two brief documents, signed by President Clinton, determine
for the record that aerial interdiction of suspected drug trafficking aircraft
is necessary to defend the national security of Peru and Colombia, and
that both countries have procedures in place to protect loss of innocent
life, satisfying the legal requirements of the administration's amendment
to the National Defense Authorization Act of 1995.

The language of this diplomatic note to the Colombian government
is intended to make clear that the Clinton administration has made “a tremendous
legal and administrative effort” to get the intelligence sharing arrangements
back on track. Ambassador Busby is asked to tell Colombian President
Samper, “Because narcotics is very important to us, the administration
expended a great deal of effort to change U.S. law and permit us to resume
our cooperation.”